One of the common historical claims of copyright skeptics is that the Founding Fathers in the US were “suspicious” of copyright and only implemented it with reluctance. The idea could be to argue for sharp reductions in copyright law by appealing to history — as professor Tom Bell said recently in favor of decreasing copyright protections, “If it was good enough for old Ben, Tom, George, etc., it’s good enough for me.” This despite the minimal debate over the Copyright Clause in the Constitution and the subsequent Copyright Act of 1790. The “suspicions” that are often cited do not appear in these debates, nor do they manifest themselves in either of these texts. Instead, the historical record shows a fairly consistent view; when the Founders did discuss copyright, it was seen as both a natural property right of authors that deserved protecting in any enlightened nation.

The heavy lifting for the “suspicious Founding Fathers” argument comes primarily by an exchange of letters between Thomas Jefferson and James Madison discussing the recently drafted Constitution. Jefferson, expressing his thoughts on the document, mentioned briefly its lack of a general prohibition on government granted monopolies. In response, Madison noted toward the end of his letter agreement over the “nuisances” of monopolies, but reminded Jefferson that exceptions should be made for authors and inventors.

While interesting from a historical perspective, these letters shed little light on Jefferson and Madison’s views about the proper scope of copyright (and shed no light on the views of the numerous other Founders). It’s also important to note that Jefferson was apparently in the minority when it came to monopolies; the Bill of Rights as adopted did not include any prohibition on them.

I recently came across a letter by James Madison and sent to Lafayette about Thomas Jefferson, written several months after Jefferson had died. What’s interesting is how it suggests a different story then the one in the revised history of copyright skeptics.

The Marquis de Lafayette played a pivotal role in the American Revolution and its early years. Madison, Jefferson, and Lafayette knew each other since the earliest days of the US. They not only shared a passion for the republican ideals that fueled the revolutions in the US and France, they also shared a lifelong friendship.

Thomas Jefferson passed away on July 4, 1826, leaving an estate that was deeply in debt. Later that year, Madison wrote Lafayette. After recognizing their mutual sadness at the loss of Jefferson, Madison notes the tremendous financial strain Jefferson’s heirs were facing. He describes a lottery held by the government, which helped ease some but not all of the strain. But Madison shares with Lafayette another cause for hope (emphasis added):

The urgency of particular demands has induced the Executor Thomas Jefferson Randolph, who is the Legatee of the Manuscripts, to undertake an immediate publication of a Memoir, partly biographical, partly political and miscellaneous, left in the handwriting of his Grandfather, the proceeds of which he hopes will be of critical use; and if prompt & extensive opportunities be given for subscriptions, there may be no disappointment. The work will recommend itself not only by personal details interwoven into it, but by Debates in Congress on the question of Independence, and other very important subjects coeval with its Declaration, as the Debates were taken down and preserved by the illustrious member. The memoir will contain also very interesting views of the origin of the French Revolution, and its progress & phenomena, during his Diplomatic residence at Paris, with reflections on its tendencies & consequences. A trial will probably be made to secure the copyright of the publication, both in England and in France. In the latter case your friendly counsel will of course be resorted to and I mention it that you may in the mean time be turning the subject in your thoughts. The manuscripts of which the Memoir makes a part are great in extent, and doubtless rich in matter; and discreet extracts may perhaps prove a further pecuniary resource, from time to time, but how soon and in what degree, I have not the means of judging. Mrs. Randolph with her two youngest children, left Montpellier some days ago, on her way to pass the winter with Mrs. Coolidge. Such a change of scene had become essential to her health as well as to her feelings. She has made up her mind for the worst results; a merit which quickens the sympathy otherwise so intense. She was accompanied by her son, Ths. J. Randolph who will endeavor to make arrangements with the Northern Printers for the volume to be published. It will be an Octavo of about three hundred pages.

Below is, in full, a letter from author, politician, and diplomat Joel Barlow, deeply involved during the Founding period of the United States. The letter, written in 1783 to the Continental Congress, which preceded the current federal government operating under the Constitution, called for a copyright law in the United States to protect and encourage authors.

The first US Copyright Act is primarily the result of lobbying from individual authors. Both Barlow and Noah Webster (responsible for the dictionary bearing his name today) deserve the most credit for the introduction of these protections. Barlow’s letter resulted in a resolution by the Continental Congress recommending to the States the passage of copyright laws. Most of the original States followed the Congress’s recommendation and passed their own laws protecting copyright (Only Delaware failed to pass legislation; Connecticut had actually passed a copyright bill shortly before the recommendation). When delegates met to draft the new Constitution in 1787, concerns for national uniformity to protect literary property spurred the drafting of the Copyright Clause, and the first US Copyright Act was enacted in 1790.

Barlow begins his letter laying out the arguments favoring the protection of authors and creators. He justifies copyright as a natural right, drawing on a Lockean theory of property. At the same time, he notes that protecting creators encourages them to contribute to the “national character”, an encouragement that should lie at the heart of any civilized nation. He finally notes several examples of American authors who have found their work reprinted without permission, suffering both financially and in reputation.

The influence of Barlow’s letter on the development of US copyright law is apparent. The Continental Congress and several of the States which subsequently enacted copyright laws repeated Barlow’s assertion that “There is certainly no kind of property, in the nature of things, so much his own, as the works which a person originates from his own creative imagination.” And the First Congress seems to have been convinced with Barlow’s recommendation of looking to England’s 1710 Statute of Anne for inspiration; the Copyright Act of 1790 closely resembles that law.

After having been honored by a slight acquaintance with your Excellency in your private capacity, & receiving marks of attention which I bear in mind with gratitude, I take the liberty of addressing you on a subject in which I conceive the interest & honor of the Public is very much concerned. I mean the embarrassment which bears upon the interests of literature & works of genius in the United States. This embarrassment is natural to every free Government; it is one of the evils of society, which requires to be removed by positive statutes securing the copy-rights of Authors, & in that way protecting a species of property which is otherwise open to every invader. It is a subject which, during the more important affairs of the present revolution, we could not expect to see attended to by any of the Legislatures, but is now much thought of by many individuals, & perhaps can not be too early proposed to the attention of Congress & the several States.

It would be needless to recall to your Excellency’s mind, the encouragement that has been universally given in other countries to the exertions of genius, in every way which might serve to elevate the sentiments & dignify the manners of a nation. The Historian, The Philosopher, the Poet & the Orator have not only been considered among the first ornaments of the age & country which produced them; but have been secured in the profits arising from their labor, and in that way received encouragement in some proportion to their merit in advancing the happiness of mankind.

There is certainly no kind of property, in the nature of things, so much his own, as the works which a person originates from his own creative imagination: And when he has spent great part of his life in study, wasted his time, his fortune & perhaps his health in improving his knowledge & correcting his taste, it is a principle of natural justice that he should be entitled to the profits arising from the sale of his works as a compensation for his labor in producing them, & his risque of reputation in offering them to the Public. From these considerations it is, that most of the civilized nations have removed the natural obstructions which lie in the way of literary emulation, & given the consequent encouragement to every species of laudable ambition.

America has convinced the world of her importance in a political & military line by the wisdom, energy & ardor for liberty which distinguish the present era. A literary reputation is necessary in order to complete her national character; and she ought to encourage that variety & independence of genius, in which she is not excelled by any nation in Europe. As we have few Gentlemen of fortune sufficient to enable them to spend a whole life in study, or enduce others to do it by their patronage, it is more necessary, in this country than in any other, that the rights of authors should be secured by law. In England, your Excellency is sensible that the copy-right of any book or pamphlet is holden by the Author & his assigns for the term of fourteen years from the time of its publication; &, if he is then alive, for fourteen years longer. If the passing of statutes similar to this were recommended by Congress to the several States, the measure would be undoubtedly adopted, & the consequences would be extensively happy upon the spirit of the nation, by giving a laudable direction to that enterprising ardor of genius which is natural to our stage of society, & for which the Americans are remarkable. Indeed we are not to expect to see any works of considerable magnitude, (which must always be works of time & labor), offered to the Public till such security be given. There is now a Gentleman in Massachusetts who has written an Epic Poem, entitled “The Conquest of Canaan”,* a work of great merit, & will certainly be an honor to his country. It has lain by him, finished, these six years, without seeing the light; because the Author cannot risque the expences of the publication, sensible that some ungenerous Printer will immediately sieze upon his labors, by making a mean & cheap improvision, in order to undersell the Author & defraud him of his property.

This is already the case with the Author of McFingal.** This work is now reprinted in an incorrect, cheap edition; by which means the Author’s own impression lies upon his hands & he not only loses the labor of writing, & the expence of publishing, but suffers in his reputation by having his work appear under the disadvantages of typographical errors, a bad paper, a mean letter & an uncouth page, all which were necessary to the printer in order to catch the Vulgar by a low price. The same Gentleman has by him a number of original Poems, of equal merit with those he has already given to the Public; which cannot be brought forward, for the above reasons.

These two instances may convince us that we have arrived at that stage of improvement in America which requires the attention of the Legislatures to this subject; & I have reason to hope, from the opinion of some Gentlemen of Congress, & others with whom I have conversed upon it, that we shall shortly see it in Effect, if your Excellency should think it a matter worthy of your attention. The importance of the subject, & your well-known attachment to the sciences are my only apology for troubling you with so long a letter.

I have the honor to be, Sir, your Excellency’s most obliged & very humble Servant,

Joel Barlow

_____________

*) Rev. Timothy Dwight (1752-1817) was the author of The Conquest of
Canaan, a biblical allegory of the taking of Connecticut from the British. It was not to be published until 1785.

**) McFingal, a mock epic poem by John Trumbull (1750-1831), had
originally been published in full in 1782.

On Being a Luddite — Another fantastic piece from David Newhoff. “What we preserve of the past implies the question of what we protect from the future. There is nothing inherently anti-progress about this question unless progress must exclusively mean to leap without looking.”

CBS Seeks to Unwind Retrans Agreement with Dish Network — Each of the four major US broadcast networks is currently involved in litigation with Dish Network over its Autohop and Primetime Anytime services. In the latest development, as reported by The Hollywood Reporter, CBS has amended its counterclaims after learning that Dish allegedly failed to disclose details of these services when the two companies were negotiating a new retransmission agreement in 2011.

In the Last Year… — Creative America reviews some of the positive developments in copyright law during 2012.

A middleman in the great internet copyright debate — The Irish Time sits down with Rob Levine, author of the 2011 book Free Ride: How Digital Parasites are Destroying the Culture Business and How the Culture Business can Fight Back, to talk about issues raised in his book and developments in the copyright world since it was published. Levine is speaking in Ireland this week.

Did Glee Steal from Jonathan Coulton? — Alison Keeley of IP Brief provides an excellent roundup of the news and legal issues revolving around this week’s kerfuffle that resulted when musician and internet star Coulton thought a version of Sir Mix-A-Lot’s “Baby Got Back” featured on an upcoming episode of Glee sounded a lot like a version he had released online several years ago.

Photographer Prevails in Twitter Copyright Suit — I’d like to point everyone to Creativity Tech, a new blog devoted to many of the same issues readers of this site would be interested in. In this post, the recent case involving photos posted to Twitter and then copied by AFP and the Washington Post without permission is examined, with a federal judge determining that such copying was infringement.

What I’d tell my own kids about piracy. Why scarcity is a good thing — David Newhoff offers another thoughtful piece on the cultural attitudes of the net generation. “It doesn’t matter that the sale for the producers of the tentpole is zero whether my kid watches it through a torrent or doesn’t see it at all; what matters is making the decision that if it isn’t worth paying for, it probably isn’t worth the equally valuable resources of time and attention. In short, it’s not only okay to let some things go, you don’t really have a choice.”

How to Stop Piracy: Carnegie Mellon Professor Michael Smith at DBW — Filesharing denialists continue to make their case despite all facts to the contrary. As Professor Smith points out, “while 3 studies have been published suggesting that piracy doesn’t hurt sales, 25 others have shown that piracy is bad for sales.” Smith also states that both legitimate online offerings and effective anti-piracy regulations are necessary to ensuring the public continues to benefit from the creative efforts of companies and individuals.

Declan McCullagh responds to last week’s CES panel — As reported here recently, last week’s copyright panel at the CES left much to be desired in terms of balance. McCullagh, who moderated the panel, mentioned as much on stage. The response was that anyone willing to present a different view of copyright had declined invitations to speak, but as it turns out, the CEA, which was in charge of the panel, had dropped the ball in making sure a balanced panel was presented.

The Silver Lining of the SOPA Debate — Some readers might recognize today as the one year anniversary of the SOPA blackout. Sandra Aistars from the Copyright Alliance offers her reflections.

The line between permissible copying and infringement — appropriation and misappropriation — is a difficult one to draw.

In part, this is because the statutes governing copyright offer relatively little guidance on the issue. In the US, 17 USC §106 provides that “the owner of copyright… has the exclusive right[]… to reproduce the copyrighted work in copies…”, while §501 states that “Anyone who violates any of the exclusive rights of the copyright owner… is an infringer of the copyright.” That’s it.

The difficult, and sometimes metaphysical, job of exactly defining reproduction and applying it to specific cases has been left to courts.

At the outset, it’s worth noting two very general points about reproduction. First, the definition is not limited to the copying of an entire work. “The entirety of the copyright is the property of the author; and it is no defence, that another person has appropriated a part, and not the whole, of any property.”

In some cases, a considerable portion of the materials of the original work may be fused, if I may use such an expression, into another work, so as to be undistinguishable in the mass of the latter, which has other professed and obvious objects, and cannot fairly be treated as a piracy; or they may be inserted as a sort of distinct and mosaic work, into the general texture of the second work, and constitute the particular excellence thereof, and then it may be a clear piracy. 1Folsom v Marsh, 9 F.Cas. 342 (D. Mass. 1841).

Second, the definition is not limited to literal copying. Infringement may occur through the copying of non-verbatim expression. This principle was explained most notably by Judge Learned Hand in the 1930 case Nichols v Universal Pictures:

It is of course essential to any protection of literary property, whether at common-law or under the statute, that the right cannot be limited literally to the text, else a plagiarist would escape by immaterial variations. That has never been the law, but, as soon as literal appropriation ceases to be the test, the whole matter is necessarily at large, so that, as was recently well said by a distinguished judge, the decisions cannot help much in a new case. When plays are concerned, the plagiarist may excise a separate scene; or he may appropriate part of the dialogue. Then the question is whether the part so taken is “substantial,” and therefore not a “fair use” of the copyrighted work; it is the same question as arises in the case of any other copyrighted work. But when the plagiarist does not take out a block in situ, but an abstract of the whole, decision is more troublesome. Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his “ideas,” to which, apart from their expression, his property is never extended. 245 F.2d 119, 121 (2nd. Cir.).

Simple in theory, but, as Hand points out, “troublesome” in practice.

Harney v Sony Pictures

A recent First Circuit Court decision touches on these complex issues, with the added challenge of “newsworthy” subject matter. That decision is Harney v Sony Pictures Television, released January 7th, 2013.

Donald Harney is a freelance photographer. In April 2007, Harney snapped a photo of a happy father and daughter, her sitting on his shoulders, emerging from a church service in Boston. The photo would achieve iconic status after the father abducted the daughter in 2008 during a parental custody dispute. Adding to the drama, it was soon learned that the father, Christian Karl Gerhartsreiter, was a serial imposter, passing himself off at various times as a member of the Rockefeller family, a descendant of British royalty, a Wall Street investment advisor, and a rocket scientist. In addition, Gerhartsreiter was wanted for questioning in a twenty year old homicide case in California. 3Gerhartsreiter has since been charged with the murder, and a trial is set for March 11th. A portion of Harney’s photo was used by the FBI to create a wanted poster, which Harney did not object to, and Harney licensed the photo to various media outlets as public interest in the case grew.

In 2010, Sony Pictures released a made-for-television docudrama about the Gerhartsreiter saga. Harney’s photo was “recreated”, using the film’s actors, and appeared at several points during the film. Harney sued Sony Pictures for copyright infringement. Sony moved for summary judgment, arguing that the image in the film was not substantially similar to Harney’s photo, or, in the alternative, that it was a fair use of the photo. In May 2011, the District Court granted Sony’s motion, concluding that Sony’s image copied only the “factual content” and not the “expressive elements” of Harney’s photo (and since the court held there was no infringement, it did not need to address whether there was fair use).

Harney appealed, but the First Circuit affirmed the district court’s decision.

The First Circuit’s decision

The Circuit Court began by noting the elements a plaintiff in a copyright infringement suit must establish: ownership of a valid copyright and illicit copying. However, as the Court stated, not all copying is illicit; the copying must be “sufficiently extensive” to make the two works substantially similar. At the same time, said the court, “it is permissible to mimic the non-copyrightable elements of a copyrighted work” — a principle commonly described as the idea/expression distinction.

So the analysis of illicit copying in cases like this involve two levels of scrutiny: first, the factfinder must separate the “original expressive elements” of a work from its unprotected content, and second, the two works are “compared holistically”, but only as to the protected elements of the original. Each Circuit Court has evolved slightly different approaches to substantial similarity; in the First Circuit, the test is whether “the ordinary observer, unless he set out to detect the disparities [between the two works], would be disposed to overlook them, and regard their aesthetic appeal as the same.”

Finally, the court pointed out the challenges of such an analysis with news photography. Artists have no right to the “reality” of their subject matter, said the First Circuit, but reality is the “news photographer’s stock-in-trade.” While copyright protects the creative choices of such photographers, it does not extend to the subject matter of which a photographer is uninvolved in — the court likens this subject matter to unprotected facts or ideas.

The court then applied these rules to the facts of the case. It first concluded that Harney’s photo consisted largely of factual subject matter, rejecting the photographer’s claim that this dissection of the photo’s protectable elements would result in “throwing out the work’s expressive content with the bathwater of `independently existing facts.'” The court replied that such an approach would not only run against existing precedent, but also “enlarge the scope of his copyright protection by attributing to the [p]hoto an idea” that did not originate with Harney — the idea of Gerhartsreiter’s deception that emerged after the photo was taken. As the court states:

While Harney should benefit from the added interest in his photograph, as he did through the payments from Vanity Fair and other publications, such newfound interest does not change the originality vel non of the individual components of the work. It does not, in other words, change Harney’s creative contributions to the Photo. Moreover, recalibrating a work’s originality based on a new idea of what it expresses would undermine the distinction that remains between ideas and expression in visual works. In short, we do not see how subsequent events can fortuitously transform unoriginal elements of a visual work into protectible subject matter.

(In a footnote, the court points out that “originality in timing” can sometimes be protected by copyright, citing the famous photo of a sailor kissing a nurse in Times Square on VJ day — however, “[t]his case does not involve a unique or unusual moment fortuitously captured by a photographer.”)

In the end, the court held that the “piggyback pose” of the father and daughter, their clothing, the items they held, and the church in the background were all unprotected elements of the photo. That left the framing, tones, and composition of the image as protected expressive elements. After the court struck the pose, the analysis is all but over, since that element dominates both the original photo and Sony’s image. The court found that other than the pose of the father and daughter, there were few similarities between the two photos as far as framing, tones, and composition. Thus, since Sony had only copied the unprotected elements of Harney’s photo, there was no infringement, and the district court’s grant of summary judgment was affirmed by the First Circuit.

The decision does not break too much new legal ground. But it does, no doubt, involve a set of facts that should spark the interest of copyright buffs, and the First Circuit’s opinion is fairly clear and straightforward. (For an opposing view, see the 1709 Blog’s Originality in photographs: follow-up to Harney v Sony decision, with comments by Donald Harney himself.)

Guess who’ll grab Facebook Sponsored Stories payout? (Hint: Not the victims) — Andrew Orlowski looks at the latest example of the current trend of tech companies paying out class-action settlement awards to the organizations that they fund anyway. This time, it’s Facebook, in connection with litigation over its “Sponsored Stories”, and the beneficiaries include the usual suspects, as well as, says Orlowski, “WiredSafety.org (whose founder serves on Facebook’s Cybersafety Advisory Board).”

Youtube Allows Pirate “Partners” to Profit From Illegal Movie Uploads — Since YouTube lifted its 20 minute limit on videos that could be uploaded, it has been easier to find full-length films on the site… and, as Ellen Seidler notes here, easier for people without rights to full-length films to upload and monetize them. Seidler floats the suggestion of some sort of verification process for videos over 20 minutes in length.

RapidShare: Traffic and Piracy Dipped After New Business Model Kicked In — Last year, filelocker RapidShare unveiled a set of changes to reduce copyright infringement through its service, along with an “anti-piracy manifesto” calling on similar services to join it. Fastforward to today and, according to Torrentfreak, the service has experienced both a drop in traffic and infringement. I found the following remark from the article particularly interesting: “The flipside in the short-term is that RapidShare could lose a bit more traffic, at least until it manages it balance the loss of traditional file-sharing traffic with its new image as an antipiracy-motivated Dropbox-style cloud-hosting business.” Kudos to Torrentfreak for admitting there is a distinction between legitimate cloud storage providers like Dropbox and those cyberlockers that are set up primarily to profit off infringement.

Hotfile, Megaupload, and the Future of Copyright on the Internet: What can Cyberlockers Tell Us About DMCA Reform? — Finally, have a look at third-year law student Ross Drath’s recent paper on secondary liability and cyberlockers. Drath examines issues that are currently facing courts in two major cyberlocker cases and then offers some recommendations for increasing both certainty and effectiveness in protecting copyrighted works online. Says Drath, “It would be naïve to expect that Internet piracy could somehow be completely eradicated. Like alcohol and drug abuse, these practices will surely continue regardless of the level at which they are regulated. But we can still do better than we are doing right now.”

Nowadays author’s rights are among the universally recognized human rights.

One would be forgiven for thinking the above quote was made recently and not, as it actually was, 160 years ago. Recent months have brought increased attention to copyright law and its reform. What’s most troubling about some of these calls for reform have been their mischaracterization of the nature of copyright — as, say, government regulation — and grossly inaccurate historical claims concerning the origins and development of the law. Because many of these recent articles come from the US, the focus has been on the copyright law of the US. But the development of copyright laws in countries outside the US should not be neglected.

But one example of this comes from mid-nineteenth century Europe. The author of the above quote, Johann Kaspar Bluntschli (1808—1881), was an influential Swiss jurist. 1See, generally, Herbert Baxter Adams, Bluntschli’s Life-work (Baltimore, 1884). His 1853 work, Deutsches Privatrecht, catalogs the private law of Germany at the time. The sixth chapter is devoted to the law of author’s rights, roughly equivalent to copyright law. At the time, laws governing author’s rights in Germany were roughly only a decade old.

According to Primary Sources on Copyright, “Bluntschli’s approach to author’s rights is regarded as one of the main sources of the personalistic view on intellectual property which developed within the German tradition.” The full text of the chapter along with an English translation can be found at the Primary Sources site. 2Excerpts from the work come from the English translation provided by Bently & Kretschmer (eds), Primary Sources on Copyright (1450-1900) (www.copyrighthistory.org). Philosophers such as Kant and Hegel also were indispensable to developing this justification for copyright law, sometimes considered the Continental approach to copyright, distinguishable from the Anglo-American’s Lockean and utilitarian approach. 3See, for example, Natalie C. Suhl, Moral Rights Protection in the United States Under the Berne Convention: A Fictional Work? 12 Fordham Intellectual Property, Media, and Entertainment Law Journal 1203 (2002). However, the two traditions are not as divergent as sometimes made out to be, 4Jane C. Ginsburg, A Tale of Two Copyrights: Literary Property in Revolutionary France and America, 64 Tulane Law Review 991 (1990). and less so since the globalization of copyright law, a process that began in earnest with the Berne Convention in 1886. For a comprehensive account of copyright that ties together a Lockean and Kantian approach, I strongly recommend Robert Merges 2011 Justifying Intellectual Property (a book I’m currently reading).

The Development of Author Rights

Bluntschli begins his chapter on author’s rights with their history and nature. He divides this history into four stages of development.

In the earliest stage, these rights were conceived as a “privilege… conferred in individual cases.” At this stage, “the need for protection of these rights was felt, but there was no understanding as yet of their nature.”

This privilege evolved into the next stage, that of a “publishing right.” Bluntschli writes, “However, this was a most unsatisfactory approach because it failed to take into account that the authorised publisher and the unauthorised reprinter have a different right only by virtue of their different relationship to the author, and that a monopoly granted to the former without consideration for the author, merely for the sake of the priority of the commercial enterprise, lacks any proper foundation.”

From here, the concept of “intellectual or literary ownership” came about. Bluntschli notes that this point of view has been championed by writers, but finds it unsatisfactory as a legal concept.

For jurisprudence ownership can be nothing else but a property right, that is, the complete possession exerted by individual persons over physical objects. An author’s right to his work is, however, not of this kind, since the work is something altogether quite different from the manuscript and the printed copies of the book. The latter are indeed objects which fall under the ownership of individual persons, but the work as an intellectual product is attached neither to a particular manuscript, nor to a particular book. It can also exist without having been written or printed, namely, as a spoken lecture or a speech. The author’s right is, therefore, not affected in the least if, say, his manuscript has been destroyed and all copies of the printed book have come into the hands of private owners. As an intellectual product his work has an essentially unphysical character. The living word is its truest expression.

Moreover, the author’s right is also different from ownership in the sense that the former always refers back to the author as a specific individual person, from which it can never dissociate itself completely, as long as it exists as such, whereas ownership is not concerned with the individual person of the owner. Finally, the direction, and consequently the content, of an author’s right is different from the direction and content of ownership. The owner wants to have the thing for himself; an author, on the contrary, wants to communicate his work to the public, as long as it can be done in an ordered manner and his authorship can be respected.

And so, we reach the fourth stage. Citing both the philosopher Kant and French jurist Renouard, Bluntschli endorses a conception of the author’s right “not as a property right, but, rather, as a personal right of the author, as the right of the originator.”

The Nature of Author Rights

As noted above, observers generally mark a divide between this Continental “personalty” foundation of copyright and the Anglo-American “property” foundation, and at first glance, Bluntschli’s approach seems to confirm this divide. However, I think these two approaches, especially during the time frame Bluntschli was writing about, have more similarities than differences.

The personal rights approach can be seen as a more robust conception of “property” as developed by British, and later American, jurists during the 17th and 18th centuries. Such jurists were open to a broader definition of property than what we often think of today. For our purposes, this broader definition was explained most notably by James Madison in his 1792 essay, On Property. In it, the “Father of the Constitution” writes that property encompasses two meanings:

In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage.

In the former sense, a man’s land, or merchandize, or money is called his property.

In the latter sense, a man has a property in his opinions and the free communication of them.

He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them.

He has a property very dear to him in the safety and liberty of his person.

He has an equal property in the free use of his faculties and free choice of the objects on which to employ them.

In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.

Law professor Laura Underkuffler writes that this broader conception of property was fully present during the Founding era. 5On Property: An Essay, 100 Yale Law Journal 127 (1990). “The term ‘property’ or ‘propriety’ was widely used in the seventeenth century to include constitutional liberties as well as other matters.” John Locke’s writings on property embraced this wider meaning of property as well. Underkuffler states that this historically broad definition of property

was tied to the notion of human beings as masters of themselves; it involved the maintenance of personal integrity in both a physical and nonphysical sense. It was intimately related to the development of the human personality, to the exercise of independent thought and creative powers. It was universal and reciprocal: it was that to which we, as human beings, “attach a value and have a right, and which leaves everyone else to the like advantage.”

In this sense, one can easily see the similarities to the personalty rights discussed by Bluntschli. Both reflect a deep recognition of personal autonomy and dignity; the differences, at least in the broad strokes, are merely semantic.

Bluntschli next lucidly describes the nature of author’s rights. He first emphasizes that the intellectual product created by the work is not physical but a “revelation and expression of his personal intellect.” There is a “natural relationship” between author and work, and it is by “natural right that this relationship be respected.” This right includes not only the right to prevent the work from initial publication, but also the right to publish and determine “the manner and time of its publication and reproduction.” Thus, writes Bluntschli:

even if the reprinting of a work by a third person, without the authorisation of its author, were not to cause financial loss to the latter and were perhaps even to secure him profits, this would still be a violation of the author’s rights, for no one has the right to make the author speak to the public against his will, that is, to expose a part of his personality, his name, and his author’s honour to the community. This can cause damage to the author’s position and reputation of far greater import than that of a missed royalty.

Of particular note is Bluntschli’s discussion of the duration of author’s rights. Recent criticisms of copyright show trouble understanding how the drafters of the US Copyright Clause conceived of author rights as property rights while constitutionally limiting their duration. Though Bluntschli is approaching the concept from a slightly different perspective, his discussion of why rights in expressive works do not last forever is both cohesive and illuminating:

Ownership lasts as long as the object which is owned exists. The author’s right, however, does not last as long as the work is in existence. At first consideration for the author’s person is certainly paramount, but with the passing of time the work falls entirely to the community and the author’s right expires.

Now, the principle is generally recognized that the author’s right in any case lasts for as long as as the author is still alive. This means that he stays in control of his communications to the public, insofar as this is still possible. However, modern jurisprudence extends this right to beyond his death and does so for good reason. For if author’s rights were restricted to the author’s lifetime, as personal rights usually are, their duration would be completely uncertain and because of this it would be much harder for the author to secure, by contract with a publisher, the property value to which he is entitled. Moreover, his family would be left out of consideration in the case of the author’s premature death, which is all the more unjust given that the public, whom the latter has done a service by his work, gains in [spiritual] enrichment, whereas the author’s family, which had probably been uppermost in his concerns, would suffer an additional loss. For this reason the author’s person is honoured in his work also beyond his death in the sense that his family (i.e. his successors) are guaranteed the benefit of the author’s rights for a certain period: namely, for as long as the author’s person is still fresh in people’s memory and the author is thereby effectively still alive in the next generation (i.e. that of his successors). It is this idea which underlies the legally specified period of thirty years after an author’s death.

Note that at the time of writing, many countries with copyright laws outside of the US had adopted a “life plus” duration of protection. And in fact, within a century, all countries save for the US and the Philippines (formerly under the control of the US) protected copyright for the life of the author plus a set period of years. 7Copyright Law Revision Study #30, “Duration of Copyright“, pg 59 (1961). The US would not adopt a “life plus” term until the Copyright Act of 1976, long after this had become the international norm.

The remainder of the chapter on author’s rights involves a general discussion of the law of author’s rights. Though I won’t go into more discussion about it, it is worth a read — it is both interesting in and of itself and remarkable in how closely the law described by Bluntschli parallels modern copyright doctrines. This provides just one reason why the 19th century jurist’s writings on author rights remain relevant today. Contemporary efforts to reform copyright law are done a disservice when they rely, as they often do, on revisionist history and an impoverished conception of author rights.

The purpose of this argument is apparent; “monopoly” has historically carried a negative connotation. At times, however, the debate seems to devolve to mere semantics. It may be more helpful to look at exactly what negative effects a monopoly has on society and see how prevalent these effects are in markets for copyrighted works to see how accurate this label is. This is especially helpful because the legal and colloquial definitions of monopoly differ throughout history — the term means something different under the current Sherman Antitrust Act, to someone during the era of trust-busting in early 20th century United States, and to a jurist in 18th century England.

While certainly not the earliest expression of this argument, Thomas Babington Macaulay provides an oft-cited iteration of this critique. The following quote from the 19th century British politician (once called “the most brilliant writer of his time, but not the most correct”) 2Wraxall’s Memoirs, Littell’s Living Age (Boston 1884). comes from a speech made in front of the House of Commons during 1841. The House was currently considering a bill to extend the term of copyright duration. Macaulay made the following remarks:

Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly. … I believe, Sir, that I may with safety take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad. And I may with equal safety challenge my honourable friend to find out any distinction between copyright and other privileges of the same kind; any reason why a monopoly of books should produce an effect directly the reverse of that which was produced by the East India Company’s monopoly of tea, or by Lord Essex’s monopoly of sweet wines. 3A Speech Delivered in the House of Commons on the 5th of February 1841, Lord Macaulay’s Speeches, pg 112 (London 1866).

Given the concerns raised by Macaulay and others throughout copyright’s history, we might say that there are three chief effects of monopoly that are particularly relevant: that it raises prices, that it prohibits others from engaging in behavior they otherwise could engage in, or that it serves as a barrier to entry in the specified market. By examining each of these in turn, we can test whether it is valid to consider copyright a monopoly, beyond the more common definitional arguments.

Does Copyright Raise Prices

In a purely competitive market, the price of a good tends toward the marginal cost of producing the good. When a firm operates under a monopoly, it can set prices above the marginal cost since it is free from competitive pressures. The result is a diversion from the optimal supply/demand curve: less consumers pay more for a good, while a firm sees higher profits, leading to less aggregate economic welfare. 4George Stigler, “Monopoly“, Concise Encyclopedia of Economics, Library of Economics and LIberty. So, if copyright is a form of monopoly, we should expect that copyrighted works on average are priced higher than non-copyrighted works.

This, however, is not necessarily the case. In a 2008 paper, economist Stan Liebowitz set out to test whether copyright is like a monopoly by endeavoring “to infer the extent of monopoly power by measuring the price increase, if any, caused by copyright,” a question that had apparently not been tested before. Liebowitz came to two conclusions.

The first, treating all observations equally, found “that copyright does not raise price and that there is no monopoly deadweight loss. Increases in copyright unambiguously enhance economic efficiency.” [Emphasis added.] The second observation weighted books by their sales and found “that copyright increases price but by a modest level which is generally about the same as typical royalty payments”, implying “that any economic rents go to authors.” 5Is the Copyright Monopoly a Best-Selling Fiction?

These conclusions should not be as surprising as they seem to the ordinary observer. Most people would note that copyrighted works show a remarkable consistency in pricing: iTunes, for example, has a very narrow range of prices for digital song downloads. This would suggest that while a single copyright owner has exclusive control over her work, this control is not monopolistic; there are such a wide range of close substitutes in the market to prevent any individual copyright owner from raising the price too far above the marginal cost.

Does Copyright Take Away Anyone Else’s Rights

Nowadays, a monopoly most often arises organically, when a firm becomes so dominant in its market that it has the ability to engage in anti-competitive behavior unless the law steps in. But in the past, monopolies were likely the result of actual government grants. It is in this sense that copyright has historically been labelled a monopoly, since prior to modern copyright laws, printers and publishers were given exclusive rights through such grants. 6See, generally, Tyler Ochoa & Mark Rose, The Anti-Monopoly Origins of the Patent and Copyright Clause, 49 Journal Copyright Society of the USA 675, 677-79 (2002).

The primary effect of grants like this was that they excluded others from engaging in conduct they were otherwise able to do, as this portion of a 1901 treatise attests:

§ 1. Definition of monopoly.— A monopoly is a license or privilege allowed by the sovereign for the sole buying and selling, making, working, or using of anything whatsoever; whereby the subject in general is restrained from that liberty of manufacturing or trading which he had before.

§ 2. Lord Coke’s definition is, “an institution by the king, by his grant, commission, or otherwise, to any persons or corporations, of or for the sole buying, selling, making, working or using of every thing, whereby any persons or corporations are sought to be restrained of any freedom or liberty they had before, or hindered in their lawful trade.”

§ 3. In Hawkins’ Pleas of the Crown the following definition is found: “A monopoly is an allowance by the king to a particular person or persons of the sole buying, selling, making, working, or using of any thing, whereby the subject in general is restrained from the freedom of manufacturing or trading which he had before. Monopoly differs from ingrossing only in this, that monopoly is by patent from the king, and ingrossing by the act of the subject between party and party.”‘

The Stationers’ Company, operating initially under a 1557 royal charter, were granted privileges to Greek and Roman classics, not based on any privity with the original authors, but only through the caprice of the Crown. Similarly, some printers were granted privileges to entire categories of books, such as law books.

By this clause, the Company of Stationers have a monopoly of all the classical authors; and scholars cannot, but at excessive rates, have the fair and correct edition of these books printed beyond seas. … That any person or company should have patents for the sole printing of ancient authors is very unreasonable and injurious to learning; and for those who purchase copies from authors that now live and write, it may be reasonable to limit their property to a certain number of years after the death of the author, or the first printing of the book, as, suppose, fifty or seventy years. This I am sure, it is very absurd and ridiculous that any one now living should pretend to have a propriety in, or a power to dispose of the propriety of any copy or writings of authors who lied before printing was known or used in Europe.

The Statute of Anne rectified this in 1710 by vesting exclusive rights only in the original author of a work, and originality has been the sine qua non of copyright protection in every copyright law that has followed, including the US in 1790 and France in 1793. Protection only extends to that which an author has created anew, and does not extend to anything already in existence, which would presumably be available to all to use.

Yet some continue to make the argument that copyright is a monopoly on the grounds that it restrains someone from doing something they were able to do before.

Let us recall that IP rights give to pattern-creators partial rights of control—ownership—over the tangible property of everyone else. The pattern-creator has partial ownership of others’ property, by virtue of his IP right, because he can prohibit them from performing certain actions with their own property. Author X, for example, can prohibit a third party, Y, from inscribing a certain pattern of words on Y’s own blank pages with Y’s own ink.

That is, by merely authoring an original expression of ideas, by merely thinking of and recording some original pattern of information, or by finding a new way to use his own property (recipe), the IP creator instantly, magically becomes a partial owner of others’ property. He has some say over how third parties can use their property. IP rights change the status quo by redistributing property from individuals of one class (tangible-property owners) to individuals of another (authors and inventors). Prima facie, therefore, IP law trespasses against or “takes” the property of tangible property owners, by transferring partial ownership to authors and inventors. It is this invasion and redistribution of property that must be justified in order for IP rights to be valid.

The claim is superficially attractive but falls apart on closer glance. Remember, copyright only prohibits copying of original expression. One is not restrained from independently creating existing expression, no matter how closely it resembles another’s work. 7See, for example, Sheldon v Metro-Goldwyn Pictures, 81 F.2d 49, 54 (2nd Cir. 1936), “Borrowed the work must indeed not be, for a plagiarist is not himself pro tanto an “author”; but if by some magic a man who had never known it were to compose anew Keats’s Ode on a Grecian Urn, he would be an “author,” and, if he copyrighted it, others might not copy that poem, though they might of course copy Keats’s.”

So to say copyright “takes” some sort of right away from third parties is only correct under the most theoretical of physics. It might be easy to conceive of copyright as a restraint on one’s ability to reproduce, say, Suzanne Collins Hunger Games series of books. But it is more difficult to see how copyright “takes away” one’s ability to reproduce Collins’ next book, one she hasn’t written yet. Once she completes it, copyright vests in her the exclusive right to reproduce it, but that exclusive right is not at the expense of anyone else, unless they have a functioning time machine. It is the same as saying a law prohibiting an individual from flying by flapping his arms, or travelling faster than the speed of light, takes away a right. Copyright creates a right in the author without taking away any other’s rights.

Does Copyright Create Barriers of Entry to Potential Competitors

One final negative effect of monopoly is that it allows a monopolist to erect barriers to entry to other potential competitors, keeping the incumbent firm’s dominant position secure. The question would be, does copyright act as such a barrier to entry?

This is probably easiest to answer of all three: of course not. If Jack writes a song, that in no way affects Jill’s ability to write a song.

That’s not to say that firms producing copyrighted works have never engaged in monopolistic behavior — as with any other industry, this will occassionally happen. 8See, for example, US v Paramount Pictures, 334 US 131 (1948); US v Lowe’s, 371 US 38 (1962); Starr v Sony BMG Music Entertainment, 592 F.3d 314 (2nd Cir. 2010). But it’s important to keep in mind that this isn’t an inherent part of copyright law. Such behavior occurs independently of copyright.

See, for example, Sheldon v Metro-Goldwyn Pictures, 81 F.2d 49, 54 (2nd Cir. 1936), “Borrowed the work must indeed not be, for a plagiarist is not himself pro tanto an “author”; but if by some magic a man who had never known it were to compose anew Keats’s Ode on a Grecian Urn, he would be an “author,” and, if he copyrighted it, others might not copy that poem, though they might of course copy Keats’s.”

Report links Google, Yahoo to Internet piracy sites — Leading off the new year is a new report from the USC’s Annenberg Innovation Lab which finds that Google and Yahoo run the top ad networks which finance commercial piracy sites. This article from the LA Times notes that jeans maker Levi’s was quick to respond when it discovered its brand was discovered on pirate sites, taking steps with its global ad agency to prevent future ads from showing up on such sites. The Hollywood Reporter confirms that Google has reached out to Jon Taplin, director of the Lab, in the wake of the report, and has expressed interest in solving the problem of funding the unauthorized exploitation of creators. Also be sure to check out commentary from the Trichordist, Chris Castle, and Ellen Seidler on this subject.

Most Popular Intellectual Property and Technology Law Blogs — Canadian attorney and blogger Barry Sookman has compiled a comprehensive list of popular blogs for those interested in IP and technology. The list breaks down the blogs by geographic focus and includes sites that concentrate on IP areas beyond copyright, like patents and trademarks. An incredibly useful list for active readers and practitioners of this area.

Warner Bros. Vs. Custom-Built Batmobiles: The Legal Battle Continues — Na na na na na na na na lawsuit. Eriq Gardner reports on an ongoing action by Warner Bros, who, through their subsidiary DC Comics, own the rights to Batman, and a maker of a replica Batmobile. Last year, the court denied a motion to dismiss copyright claims, saying it was possible that certain aspects of the auto could be protected under copyright law. Now, both parties have moved for summary judgment on the copyright issues, as well as trademark and other claims.

Oral Argument in the Second Circuit in Aereo Suggests that a Reversal Is in the Offing — Andrew Berger examines last month’s oral arguments in front of the Second Circuit (with a link to the transcript) in WNET v Aereo, involving internet broadcast retransmitter Aereo. The company argues that copyright liability should be dependent on what technology one uses to reproduce and transmit television programs. Berger concludes that the Second Circuit “is likely to find a way to reverse” the district court’s denial of a preliminary injunction against Aereo.

The ‘Digital Economy’ in 2012: A big noisy hole where money should be — Andrew Orlowski reflects on the past year and developments in technology and communications. “The most interesting development of the year was how the value of the individual is being rediscovered. In Nick Harkaway’s book, he points out that individual privacy rights – the ability to own your own data, or ‘habeas data’ as it’s been called – and individual property rights are one and the same. We need ‘an internet that forgets’ and an internet where value is returned to the creator. Both require the same thing: individual ownership to be defended and asserted.”

What Turned Jaron Lanier Against the Web? — The Smithsonian has a great profile/interview with Jaron Lanier this month. Highly recommended; for readers unfamiliar with Lanier, check out the article, and follow it up with a read of his 2010 book You Are Not a Gadget, a nuanced critique of the technological determinism that influences many strands of copyright skepticism today.

Welcome back! I hope all my readers have had a wonderful holiday season and a happy new year. Now that the holidays are over, Copyhype is back to its regularly scheduled programming. I wanted to start things off with a quick look back at 2012 and a quick look forward at 2013.

In the lower courts, a group of cases involving broadcast television retransmission and the impact of the Second Circuit’s 2008 Cablevision decision are wending their way through the judicial system. Leading the pack is Aereo, where oral arguments were heard in front of the Second Circuit late last November for an appeal of the district court’s denial of a preliminary injunction, meaning a decision could come later this year. See Aereo takes its tiny antennas to Opposite Town. And just last week, on the west coast, a federal district court came to the opposite conclusion and granted a preliminary injunction against FilmOn, a similar service.

Little has been said about Hotfile so far, but developments should be expected this year in the lawsuit filed by major motion picture studios against the filelocker. A ruling on dispositive motions is currently pending in a Florida district court, and a trial date is tentatively scheduled for March. See Copyright Liability for Filelockers: Disney v Hotfile.

In Congress, it would appear that the major issue this next year will be royalty rates for webcasting. The next ratesetting proceeding at the Copyright Royalty Board, to set rates for 2015-2020, is fast approaching. Last fall, Pandora backed the Internet Radio Fairness Act, which, among other things, would have changed the standard used by the Board to set rates. At a hearing in November, the House Judiciary Committee appeared skeptical of the bill’s approach, but also expressed a desire to take a broader look at the issue of digital performance of sound recording royalties, seemingly frustrated that the compulsory licensing scheme has required so much legislative attention over the past decade. Some members of the Committee also hinted that the issue of a broader public performance right for sound recording owners was on the table, something that has eluded such copyright owners for decades. See A Brief History of Webcaster Royalties for more background.

What else can we expect from Congress? There have been rumblings of a renewed push for orphan works legislation, and recent events from several conservative-leaning institutions hint at increased attention toward general copyright reform — aided by current European Commission efforts to modernize copyright law.

Much more is obviously in store for the upcoming year. Don’t forget that you can subscribe to Copyhype’s RSS Feed, sign up for email updates, follow me on Twitter, or Like me on Facebook. Here’s to 2013!

About

Copyhype provides news and info on current developments relating to copyright law, the media industries, and the digital economy. It cuts through the hype to bring reasoned discussion aimed at both legal and nonlegal audiences.

Terry Hart is currently VP Legal Policy and Copyright Counsel at the Copyright Alliance. Any opinions expressed on this site remain his own and not necessarily those of his present or any past employers.